The language of section 1983 makes “[e]very person” who deprives another of his or her constitutional rights under color of law potentially liable in damages.

On its face, section 1983 does not provide for any individual immunities. Moreover, the legislative history on this question is almost entirely lacking.

It turns out, nevertheless, that there are individuals who are not “persons” and who are absolutely immune from damages liability when sued in their individual capacities.

Three Categories of Absolutely Immune Individuals

There are three categories of absolutely immune defendants about which I will separately post later: state and local legislators, judges and prosecutors. But for now, I want to make the following introductory comments.

The Supreme Court’s Approach and Policy Considerations

Over the years the Supreme Court has developed the three categories of absolutely immune defendants by asking two questions.

First, what was the common law immunity background in 1871, when section 1983 was enacted? Second, if the 1871 common law provided for absolute immunity, is that consistent with the purposes of section 1983 in general?

The policy considerations specifically underlying absolute individual immunity are several. The core policy, though, is the promotion of independent decision-making without fear of either being sued (the costs of defending) or personal liability (the costs of liability). In other words, absolute immunity provides a wide margin for error for certain government officials whose functions are so very important that they should not be “chilled” at all when they make their legislative, judicial or prosecutorial decisions.

The Procedural Effect of Absolute Individual Immunity

When prosecutorial immunity is successfully asserted, the impact is significant and immediate. Whether through a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment, the defendant sued for damages in his or her individual capacity is dismissed from the damages part of the litigation altogether. This is consistent with the primary purpose of absolute immunity: to minimize, if not altogether eliminate, the costs of defending, including inconvenience to the defendant.

As a practical matter, this means that the plaintiff bears the costs of the constitutional deprivation. Those costs are not shifted to the absolutely immune defendant even if he or she violated the plaintiff’s constitutional rights.

The Functional Approach

It is important also to be aware that the Supreme Court has taken a functional approach to individual immunities. It has emphasized that absolute immunity is intended not to protect the individuals themselves but rather the functions they perform. Forrester v. White, 484 U.S. 219 (1988). For example, a legislator who acts in an administrative capacity by allegedly firing an aide unconstitutionally will not be protected by absolute immunity because the challenged conduct is not legislative in nature.